Civil Rights, Civic Virtues, and the Right to Bear Arms: a Review of Saul Cornell's A Well Regulated Militia

Whatever you happen to believe about the original meaning of the Second Amendment is probably, if not altogether wrong, at least not altogether right. This, at least, is Saul Cornell's main contention in A Well Regulated Militia This is not because it is so hard to find out what people thought about the Second Amendment in 1790. It's just that so many people thought so many things that it is not really possible to reconstruct a coherent original understanding of the text. And even if we could, such an understanding would be based on a historical context that simply does not apply to America in the 21st century.

Let's begin with that context. In the 18th century, local militias were kind of a big deal. Not only did most states and communities have them; most adult white males belonged to them, and were required to belong to them, as a condition of exercising other rights of citizenship. At this time, there was no standing army and no real professional police force. If a community wanted protection--from Indians, Redcoats, bad guys or whatever--the local militia had to provide it.

And that's the way we liked it back then. Most people saw standing armies as instruments of tyranny. In Massachusetts and Virginia, the British governors had tried to disband militias, seize people's arms, and bring in professional soldiers (quartered in the homes of citizens) to provide protection. The colonists were not amused.

The Second Amendment grew out of the concern that this sort of thing could happen again (so, too, did the Third Amendment, which forbids the quartering of soldiers in peacetime). When state legislators were petitioning the First Congress about possible amendments for the Bill of Rights, nearly all of them submitted amendments that would guarantee the right to bear arms AND prohibit a standing army during peace time. Federalist, who were unimpressed with the performance of the state militias during the Revolution, managed to fight off the objections to a standing army. To do this, however, they had to guarantee the perpetuity of state militias (and assure that soldiers would not be quartered in homes).

What all of this gives us is a preamble to the Second Amendment that (translated into modern English) reads something like this: "Because a well-trained and well-provisioned militia is the only kind of security force consistent with the principles of a free Republic, the right of the people to keep and bear arms shall not be infringed." The key here is that serving in a militia was both a civic right and a civic responsibility, like voting or serving on juries. The two clauses in the Second Amendment emphasize both the civic duty ("a well regulated militia being necessary to the security of a free state") and the civil right ("the right of the people to keep and bear arms shall not be infringed.") The right and the duty are inseparable. To the eighteenth-century mind, they could not be otherwise.

Most of the things that we now associate with the Second Amendment were not part of the original understanding but results of various battles and court cases in the nineteenth century. Among the most important of these are:

The Individual Right to Self-Defense, which was recognized as a common-law right during the Founding era but not applied to the Second Amendment until the Jackson era. At that time, however, new State constitutions in Mississippi, Maine, Michigan, Missouri, and (a little bit later), Texas merged the Constitutional right to bear arms with the common-law right to self-defense in statements like: "the right to bear arms in defense of self and state." This gradually became the orthodox interpretation (and on many ways still is). However, during Reconstruction, many Southern States rejected the Individual Rights approach to the Second Amendment in favor of a Collective Rights approach that rejected any individual Constitutional right to bear arms. They did so primarily because freed slaves were demanding the right to exercise their right to bear arms. Nonetheless, the Reconstruction-Era Theory of Collective Rights became the dominate liberal approach to the Second Amendment in the 20th century

The Collective Right of Resistance, or the belief that the right to bear arms gave state or local militias the right to resist federal tyranny. Anti-federalists in the First Congress wanted something like this in the Bill of Rights, but Federalists did not go out of their way to give it to them. According to Cornell, this is first used as a legal argument in the aftermath of Dorr's Rebellion (against the State of Rhode Island) in 1842. The Court, under the direction of Supreme Court Justice Joseph Story flatly rejected this argument that any part of the Constitution conveyed a right of rebellion.

The Individual Right of Revolution: The view that the Second Amendment was designed to give individuals (as opposed to state or community militias) the right to resist the tyranny of the state--completely unheard of in the Founding Era--has become something of an article of faith among gun-rights advocates in the 20th century. Cornell does an excellent job tracing this conception back to the 1850s and the abolitionist movement. This view finds expression in the abolitionist writings of Henry Ward Beecher and its fulfillment in the raid of John Brown. It has never been upheld in any court, and most Constitutional scholars believe that it completely reverses the original understanding of the Second Amendment by transforming it from an encouragement of civic virtue to an implement of civic destruction. Nonetheless, according to a recent poll, 65% of Americans believe that this is the purpose of the Second Amendment.

(IMPORTANT NOTE: The Founders clearly recognized the natural right of revolution, which they exercised themselves in the Declaration of Independence and the Revolutionary War. But this emphatically is not the same thing as the Constitutional right to revolution, which many people see--with no support from the Founders--in the Second Amendment today).

So, where do we go from here. A lot of people think that we should base our interpretation of the Second Amendment on the "original intent" of the Founding Fathers. Could we do it? Sure. Here's how:

1. Dismantle all branches of the American military.

2. Eliminate police forces.

3. Require all male citizens to own military weapons (i.e. eliminate the right NOT to bear arms).

4. Allow government agents to record all weapons owned by citizens, to enter homes to inspect the weapons, and punish people for handling guns incorrectly.

5. Require people to give up their own time every month to engage in unpaid military exercises (this, really, is what "well regulated" means).

6. Require all citizens to bear arms in the defense of the common good, at the discretion of the executive and regardless of their personal beliefs, or face military discipline for insubordination.

7. Require everybody to sign a loyalty oath or lose the rights of citizenship, including the right to bear arms.

None of these things, of course, is likely to happen. No modern American--liberal or conservative--would tolerate them. What this means, then, is that we are going to have to do what people did throughout the 19th and 20th centuries and interpret the Second Amendment in a way that makes sense for the context that we happen to live in. In his very eloquent final chapter, Saul Cornell recommends that we think about somehow reconnecting the civil right to bear arms with the civic virtue that doing so once entailed. Such an approach would recognize that people have a right to own guns, but that they also have a responsibility to "bear arms" in a way that contributes to, or at least does not detract from, the public good.

I say let's do it

Your Rights, My Rights, Everybody’s Rights: Thoughts on the Second Amendment

“Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”   —District of Columbia v. Heller, 2008 (decision by Justice A. Scalia)

       So, here is my one-sentence take on the current gun-control debate: liberals need to stop pretending that the Second Amendment doesn’t matter; conservatives need to stop pretending that it is the only thing that matters.

Here is the longer version:

       I believe that the Second Amendment gives all Americans the right to bear arms. This is—and I believe was always intended to be—an individual right and not a collective right constrained by how we choose to define the word “militia.” The phrase, “a well-regulated militia being necessary to the security of a free state” is a dependent clause. The phrase “the right of the people to keep and bear arms shall not be infringed” is a main clause. The purpose of  main clauses is to carry main ideas.

       But my beliefs are not just about how the grammar of a sentence should reflect its logic (which it absolutely should, and if you learn nothing else in my writing classes you will learn this). The Second Amendment's protection of the right to bear arms flows from the very basic—I would say fundamental—right to protect oneself and one's family. Do guns always do this? No. But they sometimes do this, and that is enough, in my book, to make protecting people’s right to own them a moral imperative.

       As a lover of the Constitution, families, God, safety, and fundamental human rights, I am officially against taking away everybody’s guns. But then, nobody I know is actually suggesting that we take away everybody’s guns. I’m sure that somebody somewhere wants to ban guns, but it isn’t going to happen. For one thing, it would be a practical impossibility (where would we put three hundred million guns?), but even if it were mathematically possible, it would not be politically possible. Nor would it even remotely be a good thing to try.

       But here’s the thing: the right to bear arms is not an absolute right. It is not, as Justice Scalia (who is not actually very liberal) points out, “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” It can’t be. That’s not how rights work in a society where there is more than one of them. As long as there are different people endowed with various rights, no single right can be absolute for the simple reason that it will eventually conflict with other rights. This is frequently called “living in the real world.”

       This shouldn’t come as a surprise to anybody. It is how all of the other rights in the Constitution work. I have a right to the free exercise of my religion. Like the right to bear arms, this is an important, but non-absolute right. I’m not just talking about things like human sacrifice here, which would obviously interfere with the rights of the sacrificee. I can’t even break a zoning ordinance to build a church. And, no matter how sincere my beliefs may be, I don’t have a right to ingest peyote, refuse medical treatment for my child, or (as my Mormon ancestors found out not too long ago) engage in a consensual polygamous relationship with other adults. Living with other people, who also have rights, means that my right to exercise my religion can never quite be absolute.

       The courts have been very clear that this same logic applies to the right to bear arms. Two fairly recent Supreme Court decisions –DC v. Heller (2008) and McDonald v. Chicago (2010)—have established that gun ownership is an individual right that is not connected to service in a state or federal militia. These decisions are rightly seen as victories for gun rights in the United States, and, unlike many of my friends on the left, I believe that they were decided correctly.

       But these rulings don’t come anywhere near establishing an absolute right. Much to the contrary, Justice Scalia goes out of his way in the Heller decision to say that gun ownership—like the freedoms of religion, speech, assembly and the press—is NOT absolute and must be balanced with other rights and legislative prerogatives with which it may conflict. And the decision expressly permits the regulation of:

·      Concealed weapons

·      Possession of guns by felons

·      Possession of guns by the mentally ill

·      The carrying of firearms into schools and government buildings

·      Conditions on the commercial sale of arms

·      Dangerous and unusual weapons

       This isn’t quite a checklist, of course, but it does give a pretty good view of what kinds of prohibitions the Court is likely to accept. The two proposals most often advanced by gun-control advocates—universal background checks and assault-weapon bans—clearly fall within the criteria articulated in Heller: the former because it allows officials to determine who is a felon or a person suffering from mental illness, and the latter because it bans weapons widely regarded as “dangerous and unusual.”

       Let me be very clear here about the difference between a Constitutionally acceptable regulation and a good idea. Just because something is not unconstitutional does not mean that it is a good thing to do. These are debates that we still need to have, and I suspect they will be passionate and controversial. But, unless somebody actually proposes an outright ban on guns, they will not be Constitutional debates, but political debates. And having difficult political debates is one of the things that it means to live in a representative democracy.

      

The Day I Was “Review Bombed” at Amazon.com

Until 3:30 this afternoon, I had no idea that “freep” could be used as a verb. Or even a noun. Since then, however, I have become an expert, so to speak, in freeping. This afternoon, you see, I was freeped.

Freeping, as near as I can tell, is a portmanteau of “Free Republic,” a conservative commentary and blog site based in Fresno, California. It advertises itself as “the premier conservative site on the web,” and I have no reason to think otherwise. At 3:53 this message was posted to the Free Republic Site (and moments later, through the miracle of Google News Alert, to my personal e-mail account). The title of the post was simply "Freep This Book: That's Not What They Meant!

Remember how the DUs trashed Mark Levin's books at Amazon? Well, here is our chance. Some English prof named Michael Austin wrote a scatterbrained hit piece that is full of cheap shots directed at the Tea Party, Mark Levin, Hannity, etc. To do this, he took teaspoons from various works of our Framers, mixed them up with some Howard Zinn, and baked them with social justice gravy at high heat.

Wanna see how the left corrupts our college kids? Here it is.... Click the link and give this radical leftist clown Austin the zero rating he deserves!

(Click here for screen shot) 

I did not quite know, but I suspected, what would come next. And it did. Within an hour some 15 one-star reviews had appeared on my book’s Amazon site, all of them, with one exception, containing boilerplate phrases that could be applied anything left of Ron Paul or Glenn Beck. The one review that actually does refer to something in the book (a story about Elbridge Gerry), actually refers to the forward that, while not actually written by me, is available in the Amazon preview.

Perhaps even worse (from my perspective) is that the few existing reviews by people who had actually read my work—not all of them positive—were sabotaged according to the instructions given on the Free Republic site: “lower the stars on the gushy reviews by clicking NOT helpful and BUMP the 1 * star reviews by clicking HELPFUL!”

They came, they saw, they freeped. And as the day winds to a close, I am trying hard not to let it go to my head. As much as I would like to think that I was freeped because somebody considered my ideas dangerous, or radical, or worthy of rebuttal, I know that this is not the case. That’s Not What They Meant was chosen more or less at random because because somebody who participates in a blog site stumbled across it and thought that it would be fun, or noble, or brave to crowdsource their disapproval. Apparently, somebody at another site did this to another book. And so on.

I can't really object to the actions of the freepers, nor would I do anything to stop them even if I could (and I can’t). I made a very conscious choice to enter the ideological marketplace with a book that criticizes some people and calls them wrong. There are consequences to doing things like that. And I would much prefer to be criticized (even by people who have read no more than the book’s title and a call to action on a popular blog) than to be ignored, which is, after all, the fate of most books. As far as I can tell, all of the reviews have spelled my name correctly, and, beyond that, there really isn’t any such thing as bad publicity.

But I would like to issue an invitation to the freepers—an invitation that I will post to Amazon and, if I can get access, to the Free Republic as well. Here it is: let’s really talk about the issues that divide us—not in a tribal way, where we immediately divide into teams and dismiss the other side as intellectually and morally inferior, but as actual intelligent, responsible human beings who might disagree about some things, but who love our country and want it to succeed.

I currently maintain a blog site called Arguing as Friends where I invite people of all backgrounds and perspectives to come together and talk about current political issues without insults and without personal attacks. Your voices would be welcome there, and I would be very happy to discuss my view of the Founding Fathers—or anything else—with all of you on those terms. Really discussing controversial issues with people you disagree with can be a powerful experience that can lead to understanding, intellectual growth, and the kinds of deep compromises that led to the founding of our Republic and continue to be essential to its success.

This is a more difficult approach to political discourse than simply taking pot shots at each other on Amazon. But it is much more rewarding as well.

Why I’m (Reasonably) Happy and (Cautiously) Optimistic about the Fiscal Cliff Deal

          Yeah, I get it. Congress didn't really do anything but solve a  phony crisis of its own making. And nearly everybody I know is unhappy about the deal. Conservatives hate it because it increases taxes a lot more than it cuts spending. Liberals hate it because fails to soak the moderately rich and leaves the door open to too many cuts down the line. And pragmatists point out that, pragmatically, it doesn’t really do very much to change the current, highly dysfunctional environment in which budget choices are being made. 

       All of this is true, of course. But I would humbly suggest that it is not the point. Here is the point: they did something when doing something was hard, and we all need to show our appreciation so that they will do some more of it.
       And, make no mistake about it, what they did was hard. The debate over taxes and spending occurs at the core of what E.J. Dionne calls “our divided political heart,” which is to say that it flows directly from the different moral sensibilities that make some people ”liberal” and other people “conservative.” Those of us on both sides of the issue know that we are right with the same depth and conviction that we know everything else in the world worth knowing. And the things that we know are, ultimately, incompatible with the things that other people know.
       And this is why I am (reasonably) happy and (cautiously) optimistic about this week’s fiscal cliff compromise. As modest as it is, and as dysfunctional as we still are, I think that at least four things happened during the negotiations that needed to happen and that bode well for the future:

• Joe Biden and Mitch McConnell have emerged as a negotiators who can actually work together AND deliver the votes. Negotiation is often about personal chemistry, and, though I have no idea whether or not Biden and McConnell like each other, it is clear that their negotiating chemistry works better than either Harry Reid and anybody or President Obama and anybody. As a result, the Senate voted for the proposal 89-8, a level of unanimity that we have yet to see in budget discussions.

• John Boehner has emerged as an actual individual who is in charge of the House of Representatives. In previous negotiations, Boehner has been a wholly owned subsidiary of the Tea Party, with Eric Cantor wielding the actual power in the Republican caucus. This time, Boehner emerged from the shadow, either because he has become more willing to fight or because (more likely) his hand within his own caucus has been strengthened by the recent election results, which were not favorable to the Party of Tea.

• The “Hastert Rule” appears to have fallen. For years, House Republicans have operated under an informal agreement that they will not bring anything to a full House vote that has not been approved by a majority of the Republican caucus—thus ensuring that moderate Republicans never join with Democrats to pass legislation offensive to ultra-conservatives. Boehner broke the rule, and, as a result, moderate Republicans joined with Democrats to pass legislation offensive to ultra-conservatives. This can only be a good thing.

• Grover Norquist is under the bus where he belongs. Yes, Grover is going to say that this legislation does not raise taxes. Technically, he is correct, since taxes went up on everybody for a few hours before this vote brought them down again. But this is obvious spin designed to preserve the mystique of the tax pledge going into future negotiations. Taxes went up—albeit not much and not on very many people—but they went up none the less. And, during the process, a number of high-profile Republicans rejected the “taxpayer protection pledge” on principle. Grover Norquist will (hopefully) never again have the power over Congress that he had during the last term. And that (for me) is an unqualified good.

         So, while it is certainly true that Congress is spending the day congratulating themselves for not having done much, they did do some things, and those things have had reasonably encouraging results. Not guaranteed results, of course, just encouraging. And this is why I say let them celebrate and give them all of the positive feedback you can muster. The feedback loop is crucial. When you are training a dog, you have to give it a small treat and say "good doggy" each time it makes the tiniest move in the right direction. Even if this current bill is only "not piddling on the carpet," we need to pat our representatives on the head so that, some day, they will learn how to roll over and beg like good doggies should.

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